# Petition for Writ of Certiorari — McNish v. Alabama

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1179

## Text

' Supreme Cou
FILE

rt, U.S.
D

03 808 NO 26 2003

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003

ROSALYN MCNISH,

PETITIONER,
vs.

STATE OF ALABAMA

RESPONDENT.

APPEAL FROM:

SUPREME COURT OF ALABAMA
CASE NO.: 1021220
COURT OF CRIMINAL APPEALS OF ALABAMA
CASE NO.: 98-0654
CIRCUIT COURT OF PIKE COUNTY, ALABAMA
CASE NO.: CC 97-282/283/284/285

PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

LARRY C. MOORER
Attorney for Petitioner
107 North Jackson St.
Mobile, AL 36602

(251) 432-0002

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER PETITIONER WAS DENIED THE
RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL.

II. WHETHER THERE WAS SUFFICIENT
EVIDENCE TO SUSTAIN THE GUILTY
FINDINGS.

PARTIES

PETITIONER

Rosalyn McNish

RESPONDENT

State of Alabama

-ii-

TABLE OF CONTENTS

Page(s)
Questions Presented for Review .. . i
Parties a a = = o _ e * se e - e a o « ii
Table of Contents ..-+ +--+ -e«« » iii

Table of Cases and Authorities... Vv

Petition For Writ of Certiorari To
the Supreme Court of Alabama ..... 1

Opinions Below. ...+-++-+-+ ++ ++ 1
Jurisdiction eee ene. Ke ee

Constitutional Provisions Involved . . 2

Statement of the Case .....-+-- 3
Reasons for Granting the Writ. . . 4
eS ae ere ae ae es a ee
Certificate of Service. ....--- - 20

Supreme Court of Alabama
August 15, 2003 Certificate
of Judgment. . - - - »- APPENDIX A

Court of Criminal Appeals of

Alabama March 14, 2003 Memorandum

On Remand from.the Alabama

Supreme Court . . + ++ + « = APPENDIX B

Supreme Court of Alabama
February 7, 2003 Opinion. .

Court of Criminal Appeals of
Alabama February 4, 2000
GBARIOR «sss 88 Se ee

-iv-

APPRNDIX C

APPENDIX D

TABLE OF CASES AND AUTHORITIES o

Page(s)
Brown v. State, 663 So.2d. 1028

(Ala.Cr. ADP. 1995). . .« 10, 14
Greer v. State, 563 So.2d. 39
(Ala.Cr.App.19 SPOO) os « 18, 19
Stinson v. State, 631 So.2d. 831

(Ala. ~ 1992) ee a ae 17, 19

Strickland Ve Washington,
466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 C206G)s « ~s 10, 14

LAWS

Fifth Amendment,
U.S. Constitution ....... 3, 4

Fourteenth Amendment,
U.S. Constitution. ....... 3, 4

Sixth Amendment,
U.S. Constitution ....... 2, 4

Title 28, U.S. Code, Section
1254(1) o se * e + a . oJ te a i = 2

-YV=

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2003 .
NO. 2

ROSALYN MCNISH,
Petitioner,

vs.

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

The Petitioner, Rosalyn McNish,
respectfully prays that a writ of
certiorari issue to review the judgment of
the Alabama Supreme Court entered on
August 15, 2003.

OPINIONS BELOW
The Supreme Court of Alabama entered

its decision on August 15, 2003 denying

1

Petitioner’s Petition for Writ of
Certiorari which sought to set aside her
November 16, 1998 convictions and
sentences. A copy of the appellate -
decisions are printed in Appendixes A, B,
C and D.
JURISDICTION

On August 15, 2003, the Supreme Court
of Alabama entered its decision affirming
the Alabama Court of Criminal Appeals’
March 14, 2003 and February 4, 2000
decisions which denied Petitioner’s appeal
to set aside her November 16, 1998
convictions and sentences. (Appendixes A,
B, C and D). The jurisdiction of this
Court is invoked under Title 28, United
States Code, Section 1254(1). No other
petitioner is involved in this petition.

CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, Amendment

VI, Petitioner’s right to effective

2

assistance of counsel, Amendments V and
XIV, Petitioner’s right to the equal
protection of the law and the right to due
process.
STATEMENT OF THE CASE

On November 16, 1998, Petitioner was
tried by a jury and convicted of two
counts of conspiracy to commit theft of
property and two counts of theft of
property first degree. On December 18,
1998, Petitioner was sentenced to serve
five (5) years in prison for each
conviction, Case Nos. CC 97-282 and CC 97-
283 to run concurrently, and Case Nos. CC
97-284 and CC 97-285 to run concurrently,
but otherwise, consecutively.

The Court of Criminal Appeals
affirmed the convictions and sentences on
February 4, 2000. An application for
Rehearing was filed on February 18, 2000,
and overruled March 17, 2000. A Petition

3

for Writ of Certiorari to the Supreme
Court of Alabama was filed on March 30,
2000, was granted on February 7, 2003, and
the case was remanded to the Criminal
Appeals Court. On March 14, 2003, the
Criminal Appeals Court affirmed the :
convictions and sentences. An Application
for Rehearing was filed on March 28, 2003,
and was overruled on April 4, 2003. A
Petition for Writ of Certiorari to the
Supreme Court of Alabama was filed on
April 18, 2003, and was denied on August
15, 2003. On November 13, 2003,
Petitioner filed this Writ of Certiorari
in the U.S. Supreme Court.
REASONS FOR GRANTING THE WRIT

THE SIXTH AMENDMENT TO THE U.S.
CONSTITUTION GUARANTEES EVERY CRIMINAL
DEFENDANT THE RIGHT TO EFFECTIVE :
ASSISTANCE OF COUNSEL, AND THE FIFTH AND
FOURTEEN AMENDMENTS GUARANTEES EVERY
CITIZEN THE RIGHT NOT TO BE DEPRIVED OF
HER LIBERTY WITHOUT DUE PROCESS AND

GUARANTEES THE EQUAL PROTECTION OF THE
LAW.

RE ESN
|

STATEMENT OF THE FACTS

Attorney Brandon Coots was appointed
to represent Petitioner for the trial and
appeal of this case. On November 14,
1998, when requesting a continuance from
the scheduled November 16, 1998 trial
date, Attorney Coots, inter alia, stated:

",...And my biggest concern is, Your
Honor -- I don’t know if this has,
even, an equitable question in it.
But since I am just beginning, I.
require more time to get ready. I’m
having to do a lot of case law
research, and I’m having to do things
that these other gentlemen probably
aren’t having to do. I’m having to
go back and study up on the Rules of
evidence and such, and I just need
more time.

Also, my client hasn’t even
talked with me. I’ve called her
several times. I’ve left messages.
I need more time to prepare for this
case, Your Honor." (CR. 10).

Petitioner’s motion for continuance
was denied and the trial proceeded two (2)
days later on November 16, 1998.

Willie Joe Brown, one of the alleged

5

victims, testified that he had never met
Petitioner Rosalyn McNish, that she had
never made any promises to him, never
offered him any services, (CR. 161-162),
he never gave her any money, never gave
her any checks, and Petitioner Rosalyn
McNish never made any promises to him
about financial arrangements. (CR. 328).
Stephanie Brown, the wife of Willie
Joe Brown, testified she met Petitioner
Rosalyn McNish once. Ms. Brown stated
Petitioner Rosalyn McNish never made any
representations to her about Financial
Services and never told her where to
invest her money. (CR. 239). She stated
she never gave any checks to Petitioner
Rosalyn McNish, she never conducted any
business through her, and that all the
business was conducted through Demetrius
McNish and not.through Petitioner Rosalyn

McNish. (CR. 252). She further stated
6

arr ee

she did not know Petitioner Rosalyn

McNish’s signature. (CR. 212).

The prosecution offered two checks
into evidence that were payable to
Petitioner Rosalyn McNish, and the
Signature "Rosalyn McNish" appeared on the
back of the checks. The prosecution
presented no evidence that the aforestated

checks were signed by Petitioner Rosalyn

McNish, nor presented any evidence that | |
she had any knowledge of the said checks.
At the conclusion of the prosecution’s
case, Petitioner’s appointed attorney
Coots made a motion for judgment of
acquittal on the grounds that the State

had not proven the case beyond a

reasonable doubt and had not proven venue.
(CR. 270-271). The motion was denied.
Subsequent to the Trial Judge instructing
the jury, Attorney Coots informed the |

Court that he was satisfied with the

7

instructions. (Cr. 411)

Petitioner was convicted of two
counts of conspiracy to commit theft of
property and two counts of theft of
property, list degree. (CR. 422-423). She
was sentenced to serve five (5) years in
prison for each conviction, Case Nos. CC
97-282 and CC 97-283 to run concurrently,
and Case Nos. CC 97-284
and CC 97-285 to run concurrently, but
otherwise, consecutively. (CR. 3321).
Petitioner appealed her convictions and
sentences.

In his brief to the Alabama Court of
Criminal Appeals, Petitioner’s appointed
Counsel Coots, raised the following issues
for review:

1. The Petitioner was denied her
constitutional right to effective
assistance of counsel.

2. Trial, Court erred in not granting
a motion for mistrial due to

contact by a witness of the State

8 ‘

with a member of the jury.

3. The Trial Court erred in not
granting the Petitioner’s motion
for Judgment of Acquittal.

4. The Trial Court erred in not
sustaining the objection of
Counsel as to the chain of
custody of evidence and the
proper predicate being laid prior
to admission of evidence.

5. The Trial Court erred in not
granting a judgment of acquittal
where a fatal variance has
occurred.

6. The Trial Court erred to properly
charge the jury as to the
Defendant’s right to testify.

Subsequent to the Alabama Criminal

Court of Appeals’ February 4, 2000 opinion
which denied Petitioner Rosalyn McNish’s
appeal, Petitioner Rosalyn McNish retained
new counsel to represent her in
furtherance of her appeal.

ARGUMENT

i

PETITIONER WAS DENIED THE RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL.

9

As indicated by the Alabama Criminal
Court of Appeals in its February 4, 2000
opinion in this case, to prevail on an
ineffective assistance of counsel clain,

a Petitioner must show that Counsel’s
performance was deficient and that
Counsel’s deficient performance prejudiced

her, citing Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Brown v. State, 663 So.2d. 1028,
(Ala.Cr.App. 1995).

Attorney Brandon Coots was appointed
to represent Petitioner for the trial and
appeal of this case. On November 14,
1998, when requesting a continuance from
the scheduled November 16, 1998 trial
date, Attorney Coots, inter alia, stated:

",...And my biggest concern is, Your

Honor -- I don’t know if this has,

even, an equitable question in it.

But since I am just beginning, I

require more time to get ready. I’m

having to do a lot of case law
research, and I’m having to do things

10

Ch wf

that these other gentlemen probably
aren’t having to do. I’m having to
go back and study up on the Rules of
evidence and such, and I just need
more time.
Also, my client hasn’t even
talked with me. I’ve called her several
times. I’ve left messages. I need
more time to prepare for this case,

Your Honor."

(CR. 10).

Petitioner’s motion for continuance
was denied and the trial proceeded two (2)
days later on November 16, 1998.

As indicated by Attorney Coots, he
was not prepared to try Petitioner Rosalyn
McNish’s case. As indicated by Attorney
Coots, two (2) days prior to the trial, he
still had never spoken to Petitioner
Rosalyn McNish.

In ruling on the issues set forth by
Attorney Coots in his Appellate Brief for
Petitioner Rosalyn McNish, the Alabama
Court of Criminal Appeals ruled, inter
alia, that;

1. Petitioner failed to state with

11

specificity as to how she received
ineffective assistance of Counsel.

2. Petitioner failed to preserve the
issue of a mistrial allegedly resulting
from a juror speaking to one of the
State’s witnesses.

3. Petitioner failed to preserve the
issue of the admission of canceled checks
into evidence.

4. Petitioner failed to preserve the
issue of an alleged Jury Instruction
pertaining to Petitioner’s right to
testify.

5. Petitioner failed to preserve the
issue of an alleged fatal variance between
the charges and the evidence.

6. Petitioner failed to preserve the
issue of a motion for acquittal._

In addition to the foregoing
deficient performance on the part of
Attorney Coots, Attorney Coots failed to

12

raise the issue in Petitioner Rosalyn
McNish’s appeal that there was
insufficient evidence to sustain the
guilty findings. The Alabama Court of
Criminal Appeals reversed the conspiracy
and theft convictions of Doris McNish in
its February 4, 2000 opinion in this case.
The facts relating to Petitioner Rosalyn
McNish mirror those pertaining to Doris
McNish. A discussion of the similarity of
facts between Doris McNish and Petitioner
Rosalyn McNish is set forth under Argument
II and is specifically incorporated as
part of this issue. The facts clearly
show there was insufficient evidence to
sustain the guilty findings.

As a result of Attorney Coots’
deficient performance in failing to
preserve the issues set forth above for
Appellate Review, and his failure to raise
the issue that there was insufficient

13

evidence to sustain the guilty findings,
Petitioner Rosalyn McNish was
substantially prejudiced, and is entitled

to relief on this claim. Strickland v.

Washington, supra; Brown v. State, supra.

ARGUMENT II -

THERE WAS INSUFFICIENT EVIDENCE TO
SUSTAIN THE GUILTY FINDINGS.

The Alabama Court of Criminal Appeals
reversed the conspiracy and theft
convictions of Doris McNish in its
February 4, 2000 opinion in this case.

The facts relating to Petitioner Rosalyn
McNish mirror those pertaining to Doris
McNish. In reference to Doris McNish, the
Appellate Court states that Mr. Brown
testified that he had met Doris McNish on
two occassions and that they just spoke
and were friendly. He testified that

Doris McNish never made any

representations to him. In reference to

14

Petitioner Rosalyn McNish, Mr. Brown
testified that he had never met Petitioner
Rosalyn McNish, that she had never made
any promises to him, never offered him any
services, (CR. 161-162), he never gave her
any money, never gave her any checks, and
Petitioner Rosalyn McNish never made any
promises to him about financial
arrangements. (CR. 328). The Appellate
Court states that Mrs. Brown testified
that she had never met Doris McNish, that
she had seen her only once in a limousine
with Demetrius when he had come to her
house to see Mr. Brown, and that Doris
McNish never made any representations to
her. In reference to Petitioner Rosalyn
McNish, Mrs. Brown testified she met
Petitioner Rosalyn McNish once, that
Petitioner Rosalyn McNish never made any
representations to her about Financial

Services, never told her where to invest

15

i a ace

her money, (CR. 239), that she never gave
any checks to Petitioner Rosalyn McNish,
never conducted any business through her,
and that all the business was conducted
through Demetrius McNish and not through
Petitioner Rosalyn McNish. (CR. 252).
Mrs. Brown further stated she did not
know Petitioner Rosalyn McNish’s
signature. (CR. 212). The Appellate
Court states that the State presented
seven checks that showed Doris McNish as
the payee and that were signed "Doris
McNish." However, the State did not
present any evidence that Doris McNish
ever had any knowledge of the checks or
that Doris McNish actually signed the
checks. In reference to PetitionerRosalyn
McNish, the prosecution offered two checks
into evidence that were payable to
Petitioner Rosalyn McNish, and the

signature "Rosalyn McNish" appeared on the

16

back of the checks. The prosecution
presented no evidence that the aforestated
checks were signed by Petitioner Rosalyn
McNish, nor presented any evidence that
she had any knowledge of the said checks.
The Appellate Court states that a bank
statement for a savings account owned by
Doris McNish and Petitioner Rosalyn McNish
reflected deposits with dates and amounts
that corresponded to the dates and amounts
on some of the checks that the Browns had
given Demetrius. However, the Appellate
Court concluded that nothing showed Doris
McNish had any knowledge that the money
was being deposited into the account or
that she withdrew any of those funds. _
Therefore, the Appellate Court concluded
that the State did not present sufficient
evidence to support Doris McNish’s theft

and conspiracy convictions, citing Stinson

v. State, 631 So.2d 831 (Ala. 1992);

17

Greer v. State, 563 So.2d 39 (Ala.Cr.App.
1990). Accordingly, the Appellate Court *
reversed Doris McNish’s convictions and
sentences and rendered a judgment in her
favor. In reference to Petitioner Rosalyn
McNish, the same bank statement for a
savings account owned by Doris McNish and
Petitioner Rosalyn McNish alluded to by
the Appellate Court, reflected deposits
with dates and amounts that corresponded
to the dates and amounts on wines Ot the
checks that the Browns had given
Demetrius. However, nothing showed
Petitioner Rosalyn McNish had any
knowledge that the money was being
deposited into the account or that she
withdrew any of those funds. Based on the
foregoing evidence, the jury could not
have reasonably concluded Petitioner
either committed or aided and abetted

Demetrius McNish in committing the charged

18

———eeeeee

offenses. Therefore, as the Appellate
Court concluded in Doris McNish’s appeal,
the State did not present sufficient
evidence to support Petitioner Rosalyn
McNish’s theft and conspiracy convictions.

Stinson v. State, supra; Greer v. State,

supra. Accordingly, as the Appellate
Court reversed Doris McNish’s convictions
and sentences and rendered a judgment in
her favor, Petitioner Rosalyn McNish’s
convictions and sentences are due to be
reversed and a judgment rendered in her
favor.

CONCLUSION

For all the foregoing reasons, and
those related thereto, Petitioner Rosalyn
McNish’s convictions and sentences are due
to be reversed and a judgment rendered in

her favor.

ee lll tet ttre

——_—

LARRY C. MOORER
Attorney for Petitioner
107 North Jackson St.
Mobile, Alabama 36602
(251) 432-0002

CERTIFICATE OF SERVICE

I certify that I have on this 13th day
of November, 2003, served a copy of the
foregoing Brief for Writ of Certiorari
upon the Alabama Attorney General’s
Office, Alabama State House, Criminal
Appeals Division, 11 South Union St.,
Montgomery, AL 36130, by U.S. Mail,
postage prepaid.

———

LARRY C. MOORER

20

ee

August 15, 2003

1021220

Ex parte Rosalyn McNish. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Demetrius Antone McNish and Doris
McNish and Rosalyn McNish v. State of Alabama) (Pikel Circuit Court: Demetrius
Antone McNish #'s (97-246-253, 97-255 thru 267, 97-288 thru 293); Doris McNish
#'s (97-268 thru 281); Rosalyn McNish #'s (97-282 thru 285); Criminal Appeals :
CR-98-0654).

CERTIFICATE OF JUDGMENT

Writ Denied

The above cause having been duly submitted, IT IS CONSIDERED AND
ORDERED that the petition for writ of certiorari is denied.
Writ Denied - No Opinion

HOUSTON, J. - Moore, C.J., and Lyons, Johnstone, and Woodall, JJ., concur.

1 Robert G. Esdale, Sr., as Clerk of the Supreme Court
of Alabama, do hereby certify that the foregoing is
a full, true and correct copy of the instrument(s)
herewith set out as same appear(s) of record in said

Court.
Witness my hand this_15"_day of August 2003

/tr

Court of Criminal Appeals
State of Alabama
Judicial Building, 300 Dexter Avenue
P. 0. Box 301555
Montgomery, AL 36130-1555

RELEAS _

| | |

|
CKY" McMILLAN | | MAR 14.2003 | Lane W. Mann
Judge ; | | Clerk
L COBB } CLERK ' Wanda K. Ivey
~ _W. BASCHAB (ALA) COURT CRIMINAL | Assistant Clerk
IAW (334) 242-4590
I WISE ' Fax (334) 242-4689

MEMORANDUM
On Remand from the Alabama Supreme Court
*R-98-0654 Pike Court CC-97-246, CC-97-247,

CC-97-248, CC-97-249, CC-97-250, CC-97-251,
CC=-97-252, CC-97-253, CC-97-255, CC-97-256,
CC-97-257, CC-97-258, CC-97-259, CC-97-260,
CC-97-261,° CC-97-262, CC-97-263, CC-97-264,
CC-97-265, CC-97-266, CC-97-267, CC-97-288,
CG=$7-269, CC=-97-290, CC-97-291, CC-97-292,
CC-97-293, CC-97-268, CC-97-269, CC-97-270,

CC=-$7-271, CC-97-272, CC-97-273, CC

-97-274,

CG-$7=275, CC-97-276, CC-97-277, S&. Ge. App.

Zumbado v. State, 615 So.2d Leese
1241 (Ala. Cr. App. 1993) (emphasis
added). Because Rosalyn did not

allege in her motions for a judgment.
of acquittal that the State did not
prove a prima facie case of theft and
conspiracy, the motions did "not

squarely present to the trial court

66

the issue of the sufficiency of
the evidence; consequently, [they
were] insufficient to preserve the
issue for appellate review."
Johnson v. State, 500 So.2d 69, 72
(Ala. Cr. App. 1986) (quoting Trone
vy, State... 306 36.24 377 tate. Cr.
App. 1979)). Furthermore, Rosalyn

did not specifically challenge the
sufficiency of the evidence in her

motion for a new trial. See Johnson,

supra. Therefore, she did not
properly preserve this issue for

our review.

XxX.

Demetrius finally argues that the
evidence was not sufficient to
support his theft convictions. (Issue
VI in Demetrius’ brief to this
court.) Specifically, he argues that
the State did not prove that he

intended to deprive the Browns of

67

eae ee ee aes) 30) oy eee meee ‘

their property and that, at the time
he entered into the agreement with
Mr. Brown, he did

not intend to perform as _ promised.
When reviewing the sufficiency of
the evidence, we must view the
evidence in a light most
favorable to the State and
determine whether there was
evidence from which the jury, by
fair inference, could conclude
that the appellant was guilty beyond
a reasonable doubt. See Hale v.
State, 654 So.2d 83 (Ala. Cr. App.
1994).

Section 13A-8-3 (a) , Ala. Code
1975, defines first-degree theft of
property as the "theft of property

68

which exceeds

$1,000.00

Section 13A-8-4(a), Ala.

defines
property as

property which

second-degree
. [t] he

exceeds

$250.00

in value."
Code 1975,

of
of

in

value but does not exceed $1,000.00

in value, and which is not taken from

the person of another."

"A person commits the crime
of theft of property if

he:
"(2) Knowingly
obtains + |
deception contro

over the
of another,
to deprive

intent

the owner of

property."

§13A-8-2, Ala. Code 1975.
/ "“‘In a theft. trial,
intent is a question for
the jury.' Seaton v. State,
645 So.2d “S41 343
Cr. App. 1994). ‘Intent,

being a state

condition of the mind,

rarely, if

propert
wit

ever, susceptible

69

iiiihisatinciin nat acs sons rica

of direct or positive proof,
and must usually be
inferred from the facts
testified to by witnesses and
the circumstances as
developed by the evidence.'
McCord v. cave, SU So.z2a

92U, 328-529 (Ala. Cr. App.
1986), oting Pumphrev v.
State, 156 Ala. I03, 47 So.
ko0 (1908) .*

French v. State,, 687 So.2d 202, 204
(Ala. Cr. App. 1995), rev'd on other
grounds, 687 So.2d 205 (Ala. 1996).

The State presented evidence that
Mr. Brown agreed to give’ the
appellant money for the sole purpose
of purchasing; discounted civil
judgments. The Browns signed and
gave Demetrius 14 blank checks. The
amounts and payees on those checks
were subsequently entered and the
checks were presented for payment.
The amounts of the checks totaled
$218,400. Mr. Brown testified that he

received only $2,000 from Demetrius.

70

He testified that two other checks
Demetrius gave him were returned for
nonsufficient funds. Although Mr.
Brown made several attempts’ to
contact Demetrius after those
checks were returned for
nonsufficient funds, Demetrius did
not return his telephone calls. When
he went to the address Demetrius had
given him for the business, that
business was not at that address
and none of the McNishes worked at
that location. Accordingly, the
State presented sufficient evidence
from which the jury could have
concluded that Demetrius intended
to deprive the Browns of their
property and that he did not intend
to comply with the terms of the
agreement at the time he entered

into the agreement. Furthermore,

any evidence of services that

Ne ee On ars “a ee Pre ae gt oe

Demetrius may have provided to the
Browns merely created a conflict in
the evidence that also presented a
question for the jury to decide.
see Bennett v. State, 584 So.2d
869, 871 (Ala. Cr. App. 1990)
(holding that "{[clonflicting

evidence presents a question for the
jury, and a verdict rendered on
conflicting evidence will not be
disturbed on appeal"). Therefore,
Demetrius' argument is without

merit.

72

p>

Finaliy, Doris argues that the State
did not present sufficient evidence to
support her convictions for conspiracy and
theft. (Issue IV in Doris' brief to this
court.) Mr. Brown testified that he had met
Doris on two occasions and that they just spoke
and were friendly. He testified that Doris
never made any representations to him. He
also testified that Demetrius never
discussed Doris working with him. Mrs.
Brown testified that she had never met
Doris and that she had seen her only
once in a limousine with Demetrius when he had
come to her house’ to see Mr. Brown. Mrs. Brown
also testified that Doris never made any
representations to her. The State
presented seven checks that showed Doris
McNish as the payee and that were signed
"Doris McNish." However, the State did not
present any evidence that Doris ever had any

knowledge of the checks or that Doris actually

73

Oe |

Signed the checks. A bank statement for a
Savings account owned by Doris and Rosalyn
reflected deposits with dates and amounts
that corresponded to the dates and amounts
on some of the checks that the Browns had
given Demetrius. However, nothing showed that
Doris had any knowledge that the money was
being deposited into the account or that she
withdrew any of those funds. Therefore, the
State did not present sufficient evidence to

support Doris' theft and conspiracy

convictions. See Stinson v. State, 631 So.2d

831 (Ala. 1992) ; Greer v. State, 563 So.2d

39 (Ala. Cr. App. 1990).

EST AVARLABLE COPY e

Accordingly, we must reverse Doris’
convictions and sentences and render a
judgment in her favor.'

For the foregoing reasons, we. affirm
the trial court's judgment as to Demetrius
McNish and Rosalyn McNish. However, we
reverse the trial court's judgment as to
Doris McNish and render a judgment #n her
favor.

CONVICTIONS AND SENTENCES OF DEMETRIUS
MCNISH AND ROSALYN MCNISH AFFIRMED; CONVICTIONS
AND SENTENCES OF DORIS MCNISH REVERSED AND
JUDGMENT RENDERED.

Long, P.J., and McMillan, Cobb, and

Fry, JJ., concur.

75

'"Racad on our decision, we need not addresj

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0755%3A1. Public record. Not legal advice.